By Kristen Hildreth
The Congressional Review Act (CRA) had only been used once before the 115th Congress. But with the inauguration of President Donald Trump, and a Republican majority in Congress, using the CRA is proving to be much more successful than in years past.
To date, the president has signed three joint resolutions of disapproval into law, with the House of Representatives having passed 11 more that currently await Senate action.
The CRA was enacted in March of 1996 as part of the Small Business Regulatory Enforcement Fairness Act, in an effort by Congress to increase its oversight of federal agency rulemaking. The CRA requires agencies to report their rulemaking activities to Congress, and provides Congress with a set of procedures to overturn, or disapprove of those rules.
Under the CRA, either chamber can introduce a joint resolution disapproving of an agency’s final rule, at which point only a simple majority in both chambers is needed for the measure to head to the president. In the case that a president vetoes a resolution, a two-thirds majority vote in both chambers would be required to override.
If a resolution of disapproval is signed into law, not only does it remove the rule in question, but also prohibits a federal agency from “reissuing” the same regulation in the future, or promulgating a regulation that is “substantially” similar, unless the new, or revised, regulation is “specifically authorized by a law enacted after the date of the joint resolution disapproving the original review.” Additionally, any “determination, finding, action, or omission” made pursuant to the CRA cannot be subject to judicial review.
The timeframe to use the disapproval procedure is generally 60 working days—legislative days in the House, and session days in the Senate—from the time at which a rule is submitted to Congress and published in the Federal Register. However, the CRA contains a “reset” provision—under Section 801(d) of the CRA—if a rule is submitted to Congress fewer than 60 working days before it adjourns its session sine die, a new period for congressional review opens for the incoming session of Congress. That Congress then operates as though the rules had been submitted to Congress and the Federal Register on the 15th working day of the incoming Congress, at which point a new 60-day review period is opened. Based off the current legislative calendar, and legislative days, we anticipate disapprovals to be wrapped by mid-to-late-spring.
In November 2016, the Congressional Research Service issued a list of more than 50 “major” rules finalized on, or after, June 13, 2016, which are subject to the removal by the 115th Congress via the CRA. “Major rule[s]” are defined as having an “annual effect on the economy of $100 million or more,” an increase in costs or prices for consumers, federal, state or local government agencies, or geographic regions. and significant adverse effects on competition, employment, investment, productivity, [or] innovation.”
NCSL has developed a tracking document which provides updates on which joint resolutions have been signed into law, are awaiting the president’s signature, and have passed either the House or the Senate. Please check back periodically, as the document will be updated as resolutions move. Click here to access the tracker.
For further questions on the CRA, or resolutions for disapproval, please contact Kristen Hildreth.
Kristen Hildreth is a policy associate with NCSL's National Resources and Infrastructure Committee.